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Ambi and anr. Vs. Kunhikavamma and ors. - Court Judgment

LegalCrystal Citation
Subject Properties
CourtChennai
Decided On
Reported inAIR1929Mad661; 118Ind.Cas.296
AppellantAmbi and anr.
RespondentKunhikavamma and ors.
Cases ReferredKrishna Menon v. Unni Mamu A.I.R.
Excerpt:
- - the matter is entirely, so far as we know, res integra but we can see no strong grounds for laying down generally that in malabar palmyra trees are fruit trees within the meaning of this act, and we are not prepared to differ from the lower court in its finding on remand that they should be compensated for as timber trees, or other useful trees, compensation for which comes under section 10. we therefore adopt the valuation of the first commissioners which has been adopted by the lower court......next is the question of reclamations. those claimed are, generally, conversions from single crop land into double crop, of paramba into single crop or double crop, and the digging of a channel. these are-claimed to have been done in 21 different blocks or areas. a few arguments on the general evidence necessary to prove this kind of improvement and the onus of proof have been put forward and several rulings have been cited on these points, but these to our minds merely show that no definite standard can be laid down on these matters. the onus lies on the tenant first to show that he has in fact-made improvements as defined in section 4 of the act. it was held in a case in kuncha menon v. vishnu [1915] 28 i.c. 389 that the mere proof that the net annual produce of the holding has.....
Judgment:

11. This appeal is against the decision of the Subordinate Judge of Ottapalam in a suit by a Malabar jenmi and melchartdar for redemption and possession of the plaint properties from his kanomdars. Defendant 1 was the person most interested in the kanom. He has since died and his legal representative contests the appeal. The lower Court gave a preliminary decree for redemption in favour of plaintiff 2 on payment of a kanom amount of Rs. 14,251-14-1 less certain arrears of rent due. The appeal petition, which is by defendant 1, raised various grounds for discussion but the appeal has centred round the extent and value of the improvements. A memorandum of objections has been filed and argued by plaintiff 2.

12. When the appeal first came before us for hearing the appellant advanced an argument that the procedure of the lower Court in the matter of the issue of successive commissions to value the improvements was illegal. The suit was filed on 1st October 1917. In March 1918 the lower Court issued a commission which reported in August of that year. On 8th October it issued a second commission and even on 27th July 1919 issued orders for a third commission which, however, fell through. In his judgment the Sub Judge treated the reports of both the commissions as evidence and decided in favour of the second commission's figures, and his decree passed on 31st March 1923, was based on the latter report. We held in an interlocutory order dated 26th September 1927 that this procedure was illegal and that the report of the first commissioner must stand subject to any further information which the lower Court might desire and that the valuation for improvements must be based upon it. We remanded the case for findings on that basis. The findings have now been submitted. Both sides filed objections to it and have been heard and we shall now deal seriatim with the matters which are in controversy between the parties both in the appeal generally and on the findings.

13. The first point is whether palmyras ought to be valued as timber trees or fruit trees. The learned Judge has valued them as timber trees. Appellant argues that they ought to be regarded as fruit trees within the meaning of Section 4 (b), Malabar Compensation for Tenants' Improvements Act. In a judgment reported in Vellayappa Chetty v. Subramaniam Chettiar A.I.R. 1927 Mad. 137 to which one of us was a party it was pointed out how elastic the term ' fruit ' is, and it was there decided that the use of the phrase ' fruit trees ' in the definition of ' improvements ' in Section 3 (4), Madras Estates Land Act, will not include cocoanut trees in the district of Ramnad, since these are in that locality frequently planted as and in lieu of any other crop on the ground. This judgment perhaps is not of very much point as regards the proper classification of palmyras in Malabar, but the mention of cocoanuts, jack trees and pepper vine in several sections of the Act : see Section 15, (1), (2) and (3) and Section 18, seems to us some indication of what the legislature intended to regard as fruit trees under the present Act. It will be noted that palmyras are not mentioned in these sections. On the other hand palmyras are certainly used as timber and grown for their timber although they produce other useful products. The matter is entirely, so far as we know, res Integra but we can see no strong grounds for laying down generally that in Malabar palmyra trees are fruit trees within the meaning of this Act, and we are not prepared to differ from the lower Court in its finding on remand that they should be compensated for as timber trees, or other useful trees, compensation for which comes under Section 10. We therefore adopt the valuation of the first commissioners which has been adopted by the lower Court.

14. The next point is the valuation of paras of paddy. According to Section 15 of the Act the Court has to take into account the Local Government tables of prices. In his original judgment the Judge adopted the prices taken by the first commissioners from tables in force about the time of their report, which was in 1918, although his decree was passed much later, in 1923. Since the submission of the commissioners' report there have been two tables published one in July 1922 and one in June 1923 In our remand order we pointed out that the tables nearest in date to the date of the decree should be adopted. The lower Court has understood this to mean that it should adopt the rate published in June 1923 as being nearest in date to the decree although it was subsequent to it. It is argued for the respondent that it is wrong to adopt a table's figure which was not in existence on the date of the decree, that the lower Court itself could not (obviously have adopted it on the date it passed its decree, and that appellant cannot now have the rate fixed by this later tables any more than he could appeal against the rate fixed in the decree on the ground that subsequent to the decree the rate had altered in his favour. We think that this contention should prevail. We are here to decide what figure the lower Court should have embodied in its decree if on the date of it had followed our ruling, and undoubtedly the lower Court would have adopted the tables of July 1922, and, if it had, this Court could not and would not have interfered in appeal with that figure. One or two rulings of this High Court on this matter have been cited before us, for example, Kanjunni v. Raman Unni : (1918)35MLJ219 and Valuthemana v. Pathuma [1912] 17 I.C. 131. These merely lay down that if there has been a revaluation as provided for by Section 6 (3) of the Act, then the Court may consider figures given in tables subsequent to the decree. The conversion rate therefore is 15 edanglies per rupee: see para. 32 of the lower Court's finding and the valuation of improvements allowed hereafter will have to be converted at that figure.

15. In this connexion the appellant wants, so far as the conversion rate of paddy adopted in the lower Court's decree is concerned to re-open the valuation of items 7, 8, 14 and 16 against which he has not specifically appealed. We think that this should be allowed since, while the nature and extent of the reclamation allowed was not attacked, para. 53 of his appeal petition did raise the general question at what price paddy was to be valued in arriving at the valuation of all improvements.

16. Next is the question of reclamations. Those claimed are, generally, conversions from single crop land into double crop, of paramba into single crop or double crop, and the digging of a channel. These are-claimed to have been done in 21 different blocks or areas. A few arguments on the general evidence necessary to prove this kind of improvement and the onus of proof have been put forward and several rulings have been cited on these points, but these to our minds merely show that no definite standard can be laid down on these matters. The onus lies on the tenant first to show that he has in fact-made improvements as defined in Section 4 of the Act. It was held in a case in Kuncha Menon v. Vishnu [1915] 28 I.C. 389 that the mere proof that the net annual produce of the holding has increased during the tenure may in some cases be sufficient to justify an inference that improvements have been made by the tenant. In Kunjunni v. Raman Unni, it was held, and, if we can say so with respect, rightly held, that this statement of the law in 28 Indian Gases was on too broad lines; that is, that the mere increase of the net income is in itself not an improvement or a proof that there has been an improvement, but that there must be some evidence of actual improvement as defined by the Act. On the other hand, when an improvement has been effected during the tenure, for example, where what was single crop land is now double crop land, the presumption is that it was done by the tenant and the onus of proving that it was not so done is on the landlord : see Krishna Menon v. Unni Mamu A.I.R. 1925 Mad 1222.

17. One or two other general points fall to be considered. The general rate per kila for deepening land fixed by the first commissioners and adopted by the lower Court has not been attacked before us and. will be accepted. On the other hand the commissioners' general estimate of double crop as yielding three times the single crop is one which we cannot accept. It appears to us contrary to all experience. The usual proportion in other parts of the Presidency is that single crop is to double crop in the proportion of 5 to 3, and that is the approximate proportion given by P.W. 3 as to his own crops in this locality. Defendant 1 himself in his evidence gives the proportion as 10 to 8. Before the commissioners both parties seem to have agreed that the proportion is practically equal, although they disagree as to the estimates of the actual yield. On the whole we think it right to fix the proportion as equal; that is, the yield from double crop land of two crops will be twice the yield from single crop land of one crop, and when the yield from the single crop is not disputed then the yield from the double crop will be taken as double this amount. The commissioner's adoption of a double crop yield as eightfold the seed quantity is not attacked. A single crop yield will then be four times the seed quantity. It may be remarked at this stage that it is not denied that defendant 1 and his predecessors-in-title, have been tenants of most of the suit blocks for a continuous period of over 80 years. Certain local methods of measurements have to be mentioned in order to understand the discussion. The usual square measure used is a perukam which is square measurement of a six feet kole each way, that is 36 sq. ft. About 1210 of these perukams make one acre. ' Seed para ' another measure of area measures 100 perukams. Nilom is a general term used for cultivated land and paramba for uncultivated or timber land, and nathupotta is the usual term for seed bed.

* * *

18. This concludes the discussion of the items claimed as reclamation. On the above findings the amount of compensation awardable to the appellant will be calculated by each side and any differences reconciled by the office before it is finally embodied in this Court's decree. When the final figures of compensation have been so worked out, the matter of costs in the lower Court and here will be placed before us for determination.


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